The Supreme Court rejects intolerance, but leaves questions unanswered.
By Dan McLaughlin, National Review June 17, 2021
The U.S. Supreme Court broke the logjam of big cases this morning, and the best news was a unanimous ruling in Fulton v. City of Philadelphia in favor of the religious liberty of Catholic Social Services (CSS) in the face of a discriminatory effort by the Philadelphia city council to ban CSS from the city’s foster-care system because it would not place children with same-sex or unmarried couples. Not only is this a victory for the free exercise of religion in the face of an implacably hostile government, but it also signals that the Court may soon be ready to shift its jurisprudence considerably further in favor of claims of religious liberty.
While all nine justices voted in favor of CSS, the Court’s four separate opinions reveal divisions on the future course of its religious-liberty jurisprudence. Because the case was argued under the First Amendment rather than the federal or state Religious Freedom Restoration Acts, CSS could not simply argue that it qualified for a religious accommodation under those laws. The Court’s 1990 decision in Employment Division v. Smith — written by Justice Antonin Scalia — applies a more stringent standard for religious-liberty claims, which led to the passage of the RFRA back in 1993. Smith bars religious groups from claiming a violation of their right to free exercise of religion if the law applies generally and falls equally on the religious and nonreligious alike.
Chief Justice John Roberts, writing the majority opinion joined by five other justices — Justices Brett Kavanaugh and Amy Coney Barrett and the three liberals — ruled that Philadelphia had discriminated against the Catholic faith of CSS, but did not reach the question of whether Smith should be overturned. But Smith now stands on thin ice. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch all came out squarely for overturning it. Justice Barrett wrote an opinion joined by Kavanaugh indicating that Smith was wrongly decided, but — in a portion joined by Justice Stephen Breyer — cautioning that it could be difficult to fashion a rule to replace Smith, and offering that as a reason not to jump at overruling it in a case that could be decided on a narrower ground.
A Case of Discrimination
The central front of religious-liberty battles in recent years has been government pressure on religious institutions and individuals to accept same-sex marriage and other aspects of LGBTQI+ ethics in violation of their faith. Fulton is no different. Even the Court’s most liberal justices agreed: This was a case of discrimination — against Catholics.THE MORNING JOLT
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As Roberts noted, the issue in Fulton was not about anti-gay discrimination or a lack of opportunities for gay couples in Philadelphia to be foster parents, but about forcing CSS to renounce its religious beliefs:
The religious views of CSS inform its work in this system. CSS believes that “marriage is a sacred bond between a man and a woman.”. . . Because the agency understands the certification of prospective foster families to be an endorsement of their relationships, it will not certify unmarried couples — regardless of their sexual orientation — or same-sex married couples. CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children. No same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of the more than 20 other agencies in the City, all of which currently certify same-sex couples.
Philadelphia had no issue with this arrangement for 50 years, and CSS made no public fuss of its own. In 2018, however, the media decided to make it an issue. The Archdiocese responded to a newspaper inquiry by affirming that it would not consider same-sex married couples as foster parents. The Philadelphia City Council, Philadelphia Commission on Human Relations, and Commissioner of the Department of Human Services all sprang into action, even trying to cite the words of Pope Francis against the Archdiocese. Shortly thereafter, the agency found its contract terminated. CSS had to go to court to have its rights to practice its Catholic faith vindicated, which today they were.
Roberts concluded that this chain of events showed that Philadelphia acted to discriminate against the Catholic faith, and was not just applying its laws in a neutral fashion: “Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.” Intolerance was precisely what it found yet again, with Philadelphia’s arguments all pretext for squelching quiet religious dissent:
Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents. . . . The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others. . . . As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” . . . CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.
Specifically, the Court found first that Philadelphia’s contract gave it “sole discretion” to grant exemptions from its nondiscrimination clause, and that alone undermined the notion that it was just blindly applying a generally applicable and neutral law:
Where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason. . . . The inclusion of a formal system of entirely discretionary exceptions . . . renders the contractual nondiscrimination requirement not generally applicable.” (Quotations omitted).
Roberts also brushed aside Philadelphia’s argument that foster care is a “public accommodation” like a hotel:
Certification as a foster parent, by contrast, is not readily accessible to the public. It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus. The process takes three to six months. Applicants must pass background checks and a medical exam. Foster agencies are required to conduct an intensive home study during which they evaluate, among other things, applicants’ “mental and emotional adjustment,” “community ties with family, friends, and neighbors,” and “existing family relationships, attitudes and expectations regarding the applicant’s own children and parent/child relationships.” . . . Such inquiries would raise eyebrows at the local bus station. . . . The one-size-fits-all public accommodations model is a poor match for the foster care system.
Gorsuch, in a separate opinion that Thomas and Alito joined, was unpersuaded. “On the surface it may seem a nice move” to duck the Smith issue, “but dig an inch deep and problems emerge,” he wrote, arguing that Roberts’s analysis of the contract and public-accommodation law was unconvincing and likely to lead to more complications in future cases than just ditching Smith would. Gorsuch cast Roberts’s opinion as lawyerly trickery that nobody had argued in the courts below, saying of its interpretation of the contract that it was “where the real magic happens. . . . From start to finish, it is a dizzying series of maneuvers.” He did not, however, dispute the majority’s premise that Philadelphia meant to discriminate against CSS.
Smith Goes to One First Street
Roberts dealt with the discrimination issue in 15 brisk pages, but the battle over the future of Smith consumed an epic 77-page concurrence by Alito (joined by Thomas and Gorsuch) as well as a separate Gorsuch opinion and Barrett’s opinion. That divide and the path forward is worth exploring at more length, but counting noses today, there are at least three votes for junking Smith immediately. As Alito framed the issue:
This case presents an important constitutional question that urgently calls out for review: whether this Court’s governing interpretation of a bedrock constitutional right, the right to the free exercise of religion, is fundamentally wrong and should be corrected. In [Smith], the Court abruptly pushed aside nearly 40 years of precedent. . . . Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection. This severe holding is ripe for reexamination.
By contrast, as Gorsuch pointedly noted, “not a single Justice has lifted a pen to defend” Smith as rightly decided. He went after the majority in terms familiar to critics of Roberts’s courage:
What possible benefit does the majority see in its studious indecision about Smith when the costs are so many? The particular appeal before us arises at the intersection of public accommodations laws and the First Amendment; it involves same-sex couples and the Catholic Church. Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid “picking a side.” But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it. Dodging the question guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.
Gorsuch specifically cited the persistent harassment of Jack Phillips, the Colorado baker from the Masterpiece Cakeshop case, as an example of how deciding these cases under a discrimination framework rather than drawing a bright-line rule could subject believers to years of fact-specific litigation in order to vindicate their rights.
As of now, Barrett and Kavanaugh are the fourth and fifth votes needed to overturn Smith without having to rely on Roberts or Breyer. Barrett’s opinion, in a passage joined by both Kavanaugh and Breyer, gave their own reasons for wanting to leave that question open, for now:
What should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights — like speech and assembly — has been much more nuanced. There would be a number of issues to work through if Smith were overruled. To name a few: Should entities like Catholic Social Services — which is an arm of the Catholic Church — be treated differently than individuals? . . . Should there be a distinction between indirect and direct burdens on religious exercise? . . . What forms of scrutiny should apply? . . . And if the answer is strict scrutiny, would pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way?
This article first appeared HERE.